Frankel case could change the law on child molestation

If the 20-year prescription on sexual violence cases were to stay in effect while parliament takes 18 to 24 months to write it out of the Criminal Procedure Act (CPA), untold damage could occur to other children.

This was part of the argument laid before acting Judge Clare Hartford in the High Court in Johannesburg on Monday by advocate Anton Katz on behalf of eight people claiming they were sexually assaulted by billionaire businessman Sydney Frankel as long ago as 30 years before his death this year.

ALSO READ: Billionaire ‘paedophile’ Sidney Frankel dies

Katz is asking the court to remove the prescription before the judgment which, if successful, is confirmed by the Constitutional Court.

The late businessman will never be able to answer to the criminal charges.

However, the eight are pursuing overturning Section 18 of the CPA, in an amendment that may become known as “Frankel’s Law”, in order to give voice to people who may wish to claim they were sexually assaulted.

As pointed out by a panel at a press conference last week, hosted by Women and Men Against Child Abuse, survivors may take decades before they are in an emotionally strong position to confront their abusers.

Katz also wanted the minister of justice to pay for the costs of the matter for failing to alter the CPA.

“For a whole number of years, my clients have had to wait, wait, wait, being declined to prosecute; we had to go here, we had to go there, and in the meantime Mr Frankel dies,” Katz said.

“Not only were the applicants struck by the provisions, how much more harshly by my clients, but they had to approach the high court and the Constitutional Court to ensure these unconstitutional points are removed.

“For that reason the costs must at least to some extent be borne by the minister, who correctly conceded such an order,” said Katz, referring to earlier case law.

The application by the Frankel eight is uncontested.

Acting as friends of the court, and supporting the Frankel eight, were the Women’s Legal Centre, The Teddy Bear Clinic (TTBC), and Lawyers for Human Rights, which were advocating for Section 18 to be struck down for adults as well as for children.

For the Women’s Legal Centre, advocate Frances Hobden argues no sexual offence should prescribe, and if any are to be excluded from the reach of Section 18, the reasons for any such exclusion should be rational.

Hobden submitted that Section 18 assumed penetrative sexual offences were more serious than non-penetrative sexual offences and said the section was “imbued with patriarchal notions which no longer have a place in our constitutional dispensation”.

Advocate Gina Snyman for the TTBC noted in her heads of argument that Section 18 was “insufficiently cognisant of the nature and process of sexual assault disclosure”.

“It does not take cognisance of the fact that disclosure of sexual abuse is not a single event, and that it is a dynamic process that occurs in stages over a lengthy period of time and is impacted by numerous factors, thereby denying complainants the right to access justice through the court.”

Snyman noted the prescription period denied victims of sexual assault their constitutional rights to justice, dignity and equality, and was accordingly unlawful and invalid.

Lawyers for the minister of justice are expected to close arguments in the matter today.

ALSO READ: 

https://www.citizen.co.za/news/news-national/frankel-accusers-are-not-going-away/

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